James B. Gottstein, Esq.
Attorney for Appellant
THE SUPREME COURT FOR THE STATE OF
FAITH J. MYERS, )
Appellant, ) Supreme Court No. __________
Trial Court Case No. 3AN 03-00277 PR
Appellant hereby moves for an order staying the trial court's March 14, 2003, Order granting the Petition for Court Approval of Administration of Psychotropic Medication (Forced Medication Order) pending the outcome of this appeal.
The Superior Court has stayed the effectiveness of its Forced Medication order for seven days to allow Appellant to seek a stay here through an Order:
1. That the effectiveness of the Decision granting the state's Petition for Court Approval of Administration of Psychotropic Medication is stayed for seven days.
2. In the event that Respondent files a request to the Alaska Supreme Court seeking a stay of the Decision granting the state's Petition for Court Approval of Administration of Psychotropic Medication within such seven day period, the stay issued in No. 1, above shall remain in full force and effect until the Alaska Supreme Court rules on the request for stay before it.
By making this motion, Appellant is, in essence, asking this court not to dissolve the stay issued by the Superior Court. In the Forced Medication Order, the Superior Court found:
Ms. Myers [Appellant] offered the testimony of two experts in the field of psychiatry: Dr. Loren Mosher and Dr. Grace Jackson. I find both to be qualified experts in this field. Dr. Mosher's credentials and experience in the area of schizophrenia are particularly impressive.[] The testimony of these experts and the articles they offered forcefully present their differing views on the advisability of administering anti-psychotic medications to patients suffering from schizophrenia. . . . Dr. Mosher testified that anti-psychotic medications should be avoided and that counseling and other supports should be used to assist Ms. Myers through her psychotic episodes.
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[T]here is a viable debate in the psychiatric community regarding whether the administration of this type of medication might actually cause damage to her or ultimately worsen her condition.
See, Forced Medication Order, Exhibit 1 at 8, 13.
offered the opinion that a delay could harm the Respondent, but there was
absolutely no showing whatsoever by the state under the standards of Daubert v. Merrill Dow Pharmaceuticals,
As is apparent from the foregoing, the Appellant is potentially facing irreparable harm to her mind and body if the current stay is dissolved. In the event that this Court were to ultimately hold in favor of Appellant it would be too late to help her, thus effectively denying her the meaningful opportunity for appellate review.
In Powell v. City of Anchorage, 536 P.2d 1228, 1229 (Alaska 1975), this Court discussed the considerations regarding issuing a stay pending appeal, holding that much the same criteria as would be considered in deciding a preliminary injunction are relevant to such a decision. In footnote 2, this Court cited Professor Moore's suggestion that the following four factors be considered:
1. The likelihood of Appellant prevailing on the merits of the appeal,
2. Irreparable injury to Appellant,
3. No substantial harm to other interested parties, and
4. No harm to the public interest.
Appellant respectfully suggests that the balancing these factors weigh heavily -- even one-sidedly -- in favor of continuing the stay.
First, with respect to Factor 1, this Court notes in Powell, that Professor Moore observes it would be an unusual case for the trial court to arrive at the conclusion that the Appellant is likely to prevail on the merits of the appeal, thus suggesting that this is not as big a factor in considering a stay pending appeal as it is in the preliminary injunction situation.
With respect to Factor 2, irreparable injury to Appellant, as discussed above, a very clear showing of potential irreparable mental and physical harm has been shown. Appellant also respectfully suggests that the dissolution of the stay would, practically speaking, mean that this Court could never grant effective appellate relief to this appellant. This also constitutes irreparable harm to Appellant.
In contrast to the irreparable injury to Appellant by dissolving the stay, there is no apparent substantial harm to other interested persons if the stay is continued (Factor 3), nor is there any apparent harm to the public interest in continuing the stay (Factor 4).
Moreover, Appellant respectfully suggests that her constitutional right to be free of unwanted governmental intrusion into her mind and body, as set forth in the following section, absent the most compelling showing of need, safety and efficacy, so heavily tilts the balances of equities that it completely "trumps" any countervailing arguments that might be made.
The right to privacy under the Alaska Constitution is perhaps the strongest in the country. In Breese v. Smith, 501 P.2d 159, 171-2 (Alaska 1972), this Court held that a student's right to choose his hairstyle was a fundamental right under the Alaska Constitution and that right could only be abridged by showing a compelling state interest.
In Valley Hosp. Ass'n, Inc. v. Mat-Su Coalition
for Choice, 948 P.2d 963, 969 (
[W]e are of the view that reproductive rights are fundamental, and that they are encompassed within the right to privacy expressed in article I, section 22 of the Alaska Constitution. These rights may be legally constrained only when the constraints are justified by a compelling state interest, and no less restrictive means could advance that interest.
In the instant case, Appellant's interest in preventing the mental and bodily intrusion of unwanted psychotropic medication is a much more serious invasion of rights than the haircut issue ruled constitutionally protected by this Court in Breese.
Professor Michael L Perlin discusses the issue of a person's right to be free from intrusion into the functioning of her mind in his five volume Treatise, Mental Disability Law: Civil and Criminal, 2nd Ed., 1999, Mathew Bender at §3B-4.4:
Courts also looked to the then-nascent right of privacy as a possible source of the right to refuse treatment. In this context, it was first considered in Kailmowitz v. Michigan Department of Mental Health, which enjoined the operation of an experimental psychosurgery program. "Intrusion into one's intellect when one is involuntarily detained and subject to the control of institutional authorities, is an intrusion into one's constitutionally protected right of privacy," found the court. "If one is not protected in his thoughts, behavior, personality and identity, then the right to privacy becomes meaningless."
The court focused on the importance of the right "to protect one's mental processes" in the "hierarchy of values." . . . The protection of mental processes, the court ruled, was more important than "even the privacy of the marital bed." [footnotes omitted]
Appellant respectfully suggests that her right to be free of unwanted mind-altering and dangerous drugs is protected under the Alaska Constitution and can only be overridden by a showing of compelling state interest, including proper proof under appropriate evidentiary standards as suggested in Breese.
As with all of the Alaska Statutes pertaining to involuntary commitment and forced medication, there are no reported cases interpreting them. Thus, this Court might find authority from another jurisdiction helpful. In Rivers v. Katz, 495 N.E.2d 337, 343-4 (NY 1986), the New York Court of Appeals, New York's highest court, held the following on constitutional and common law grounds with respect to forced psychotropic medications:
If, however, the court concludes that the patient lacks the capacity to determine the course of his own treatment, the court must determine whether the proposed treatment is narrowly tailored to give substantive effect to the patient's liberty interest, taking into consideration all relevant circumstances, including the patient's best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments. The State would bear the burden to establish by clear and convincing evidence that the proposed treatment meets these criteria.
Appellant respectfully suggests that the logical interpretation of Breese's holding that the failure to provide proper scientific evidence was fatal in that case, means that in this case, the state must prove a compelling state interest by clear and convincing evidence under Daubert, Kumho Tire and Coon, that the proposed treatment is narrowly tailored to give substantive effect to Appellant's liberty interest, taking into consideration all relevant circumstances, including Appellant's best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments. See, e.g., Rivers, supra.
While these issues will be among those before this Court in the merits of this appeal, as set forth above, many of the same considerations apply when considering whether to grant the stay pending appeal. Appellant respectfully suggests that because such an important constitutional right is involved, which right can not be meaningfully protected by this Court if the stay is dissolved and the balance of equities heavily favors granting the stay, that the Court should grant Appellant's Motion for Stay Pending Appeal. An appropriate Order for execution by the court should the motion be granted is lodged herewith under Appellate Rule 503(b)(5).
____ day of March, 2003 at
James B. Gottstein, Esq.
 This Order also grants a 30 day commitment petition, which has not been appealed.
 The Superior Court did not require a supersedeas bond to issue the stay and because of (1) the important constitutional rights of the Respondent to be free of unwarranted government intrusion into her mind and body as set forth below, (2) the Appellant's indigency and therefore her inability to effectively assert this constitutional right if a supersedeas bond were required, and (3) the non-monetary nature of the judgment asked to be stayed, it would appear that the Superior Court's granting of the stay without such a supersedeas bond was correct and, Appellant respectfully suggests, no bond should be required under Appellate Rule 205 by this court either.
 Dr. Mosher's credentials, as set forth in his affidavit filed in this matter include:
I am born and raised in California, a
board-certified psychiatrist who received an M.D., with honors, from Harvard
Medical School in 1961, where I also subsequently took psychiatric training. I was Clinical Director of Mental Health
Services for San Diego County from 7/96 to 11/98and remain a Clinical Professor
of Psychiatry at the School of Medicine, University of California at San Diego.
From 1988-96 I was Chief Medical Director of Montgomery County Maryland’s
Department of Addiction, Victim and Mental Health Services and a Clinical
Professor of Psychiatry at the
From 1968-80 I was the first Chief of the NIMH’s Center for Studies of Schizophrenia. While with the NIMH I founded and served as first Editor-in-Chief of the Schizophrenia Bulletin.
1970 to 1992 I served as collaborating investigator, then Research Director, of
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In addition to over 120 articles and reviews, I have edited books on the Psychotherapy of Schizophrenia and on Milieu Treatment. Our book, Community Mental Health: Principles and Practice, written with my Italian colleague, Dr. Lorenzo Burti, was published by Norton in 1989. A revised, updated, abridged paperback version, Community Mental Health: A Practical Guide, appeared in 1994. It has been translated into five languages. Most recently I founded a consulting company, Soteria Associates, to provide individual, family and mental health system consultation using the breadth of experience described above.
The Forced Medication Order recites that this hearing was held
 Chapter 5 of "From Placebo to Panacea: Putting Psychiatric Drugs to the Test" (Fisher and Greenberg, editors), 1997, John Wiley & Sons.
 This article is attached as Exhibit 5 to the Deposition of Robert Hanowell, M.D., which is attached to Appellant's Motion in Limine below and attached hereto as well as Exhibit 3 for the Court's convenience.
 Admitted as Exhibit D at the March 5th, 2003, hearing.
The state is apparently seeking carte
blanche to administer any drug it might choose. Appellant protested in its
Appellant filed a Motion in Limine on
 The stay issued by the Superior Court remains in effect unless and until this Court rules on this motion for stay.
 Dr. Mosher's testimony, the David Cohen article relied upon by the Superior Court, and Dr. Jackson's affidavit as well as the Superior Court's acknowledgement that there is a viable debate concerning the safety and long term efficacy of administering these drugs.
 A related issue is the potential that the argument may arise that if the stay is dissolved and Appellee is medicated against her will, this moots the appeal. Appellant respectfully suggests that any opposition to the Stay filed by the Appellee should be considered a waiver of any mootness argument.
 In the recent case of Martin v. Taft, 222 F.Supp.2d 940, 965 (S.D. Ohio 2002), the court referred to Prof. Perlin as a "noted scholar."
 In Breese, supra at 172, this Court ruled that the failure of the school district to provide proper scientific evidence regarding its claimed compelling interest was fatal (no empirical studies offered). This precise defect is also present here.